Invictus Special Situations Master I, L.P. v. Invictus Global Mgmt., LLC

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
NATHAN A. COOK LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

April 17, 2024

Ronald N. Brown, III Rudolf Koch
Aaron S. Applebaum Robert L. Burns
DLA Piper LLP Susan Hannigan Cohen
1201 North Market Street, Suite 2100 Nichole M. Henry
Wilmington, DE 19801 Edmond S. Kim
Richards, Layton & Finger, P.A.
920 North King Street, Suite 200
Wilmington, DE 19801

RE: Invictus Special Situations Master I, L.P. v. Invictus Global Mgmt., LLC
C.A. No. 2023-1099-NAC

Dear Counsel:

This letter addresses my findings of fact and conclusions of law from the

March 28, 2024, trial on Counts I, IV, and VI of the plaintiff’s complaint. 1 For the

reasons below, I enter judgment for the plaintiff on all three counts.

1 Invictus Special Situations Master I, L.P. v. Invictus Global Mgmt., LLC,

C.A. No. 2023-1099-NAC, Docket (“Dkt.”) 1. I have carefully considered all the
evidence and cite to specific documents where appropriate. Citations in the form
of “JX __ ([Description])” refer to the trial exhibits. Citations in the form of
“PTO ¶ __” refer to the parties’ pre-trial stipulations of fact. See Dkt. 106.
Citations in the form of “Tr. __ ([Witness])” refer to testimony from the trial
transcript. See Dkt. 125. And citations in the form of “Post-Tr. __” refer to the
post-trial hearing transcript. See Dkt. 127.
C.A. No. 2023-1099-NAC
April 17, 2024
Page 2

I. FACTUAL BACKGROUND

Plaintiff Invictus Special Situations Master I, L.P. (“Plaintiff” or the

“Fund”) is a privately held investment fund and Cayman Islands exempted

limited partnership focused on litigation finance, distressed credit, and

reorganization investment opportunities. 2 In early 2019, Defendants Cindy Chen

Delano and Amit Patel founded Invictus Special Situations I GP, LLC (“Invictus

GP”) and Investment Global Management, LLC (“IGM,” together with Delano,

Patel, and Invictus GP, “Defendants”). 3 In 2019 and 2020, IGM served as a

subadvisor for Corbin Capital Partners, L.P. 4 Patel and Delano owned and

controlled both Invictus GP and IGM at all relevant times. 5

In 2020, the Fund was formed. 6 Invictus GP became the Fund’s general

partner on March 16, 2020. 7 On August 25, 2020, the Fund and Defendants Patel

and Delano entered into the First Amended and Restated Limited Partnership

Agreement (the “Partnership Agreement”); Delano did so in her individual

2 PTO ¶ 8. The Fund has several feeder funds. Whether the Fund is acting
on its own behalf or in connection with the feeder funds, however, does not impact
this analysis. Thus, for simplicity, I will only refer to the Fund.
3 JX 1 (IGM Slide Deck) at 4; JX 2 (Organization Chart).

4 Tr. 233:9-18 (Delano).

5 PTO ¶¶ 9-10.

6 JX 2 (Organization Chart).

7 JX 20 (Partnership Agreement); PTO ¶ 10.
C.A. No. 2023-1099-NAC
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capacity and Patel did so on behalf of various entities. 8 The Partnership

Agreement is governed by Cayman law. 9 Also on August 25, 2020, the Fund

entered into the Investment Management Agreement (the “Management

Agreement”), whereby the Fund appointed IGM as the Fund’s management

company. 10 The Management Agreement is governed by Delaware law. 11

Subject to limitations in the Partnership Agreement, Section 3.01 of the

Partnership Agreement provided Invictus GP “with absolute, exclusive and

complete right, power, and authority to operate, manage, and control the affairs

of the [Fund] and carry out the business of the [Fund].” 12 The Management

Agreement likewise gave IGM “full discretionary authority (until revoked in

writing) to do all acts and things on behalf of the Funds which do or may constitute

their respective business . . . .” 13

8 JX 20 (Partnership Agreement).

9 Id. § 14.02.

10 JX 21 (Management Agreement).

11 Id. § 12.

12 JX 20 (Partnership Agreement) § 3.01(a).

13 JX 21 (Management Agreement) § 1.
C.A. No. 2023-1099-NAC
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Most relevant to this post-trial decision, Section 7 of the Management

Agreement provides:

The Funds shall have direct and unrestricted access to the books and
records of [IGM] as such books and records relate to the Funds, and
any and all other information pertaining to the business and affairs
of the Funds and its Investments. [IGM] shall promptly provide the
Funds with copies of any such information upon the Funds’ request. 14

IGM retained several law firms to advise it in its capacity as the Fund’s

management company. 15 On March 19, 2021, IGM engaged U.S. Bank Global

Fund Services (Cayman) Limited (“U.S. Bank”) to serve as the Fund’s

administrator. 16 U.S. Bank was responsible for the Fund’s portfolio accounting,

investor accounting, investor reporting, tax reporting, anti-money laundering

services, and tax compliance. 17

Under Section 3.08(b)(i) of the Partnership Agreement, Fund investors

could remove Invictus GP “at any time, for any reason and without cause, by the

14 Id. § 7.

15 Tr. 240:21-241:3 (Delano).

16 JX 27 (Fund Administration Agreement). Prior to U.S. Bank, NAV was
the Fund’s third-party administrator. PTO ¶ 85. The parties amended the
administration agreement on February 23, 2022, adding U.S. Bancorp Fund
Services, LLC (d/b/a U.S. Bank Global Fund Services) as a Fund administrator,
in addition to the previously designated Cayman U.S. Bank entity. JX 34 (First
Amended Fund Administration Agreement). The parties later amended the
administration agreement on April 5, 2022. JX 39 (Second Amended Fund
Administration Agreement).
17 JX 27 (Fund Administration Agreement) Schedule A. As properly
described by Mr. Woodmansee at trial, U.S. Bank’s function is “more accounting
and related in nature.” Tr. 54:9 (Woodmansee).
C.A. No. 2023-1099-NAC
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affirmative vote of” at least two thirds of the Fund’s investor interests.18

Accordingly, on September 29, 2023, fund investors Corbin ERISA Opportunity

Fund, Ltd., Corbin Opportunity Fund, L.P., Corbin Private Creditor Manager

Fund, L.P., and New York State Nurses Association Pension Plan (collectively,

the “Corbin Entities”), with Gatewood Capital Opportunity Fund, L.P. and

Gatewood Opportunity Fund (Cayman), L.P. (collectively, the “Gatewood

Entities”), removed Invictus GP as the Fund’s general partner and IGM as the

Fund’s management company. 19 The investors replaced Invictus GP and IGM

with TREO Vitus GP, LLC (“TREO GP”) and TREO Asset Management, LLC

(“TREO AM” and collectively with TREO GP, “TREO”), respectively. 20

Upon appointment, TREO sent books and records requests to IGM. 21 U.S.

Bank cooperated with TREO to produce the records it held as the Fund’s

administrator. 22 U.S. Bank, however, could only produce the items it created,

monitored, or received from IGM. 23

On October 18, 2023, several minority investors in the Fund, including

18 JX 20 (Partnership Agreement).

19 JX 69 (Resolution of the Fund Investors); see also JX 68 (Notice of
Resolution).
20 PTO ¶ 22.

21 Id. ¶ 84.

22 Id. ¶ 85.

23 Id. ¶ 86.
C.A. No. 2023-1099-NAC
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Patel and Delano, requested that TREO provide information regarding its

“background, capabilities, and strategy to successfully manage the Fund’s

assets.” 24 On October 20, 2023, TREO responded that “such demands are

nonsensical given that IGM has not turned over books and records with respect

to these investments.” 25 Many of these transactions involve investments related

to The Tuesday Morning Corporation, DeCurtis Holdings LLC, and associated

legal expenses. 26 TREO attached a books and records request to its response

letter. 27

Plaintiff’s asserted books and records deficiencies fall into three general

categories: (1) information related to the various investment positions and assets

of the Fund, (2) information related to potential liabilities that may be asserted

against the Fund, and (3) information related to potential causes of action and

other assets the Fund may pursue. 28

On October 30, 2023, Plaintiff filed its Verified Complaint. 29 The Verified

24 JX 90 (October 18, 2023, Minority Investor Letter).

25 JX 91 (October 20, 2023, TREO Response Letter).

26Many of the disputed information deficiencies relate to complex
investment transactions that would require pages of details to give a cohesive
background. In the interest of resolving Plaintiff’s books and records claims
expeditiously, I will therefore omit a detailed recitation of the underlying
transactions.
27 JX 91 (October 20, 2023, TREO Response Letter).

28 See Tr. 24:15-25:11 (Woodmansee).

29 Dkt. 1.
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Complaint outlined eight causes of action against Defendants. Only three of

Plaintiff’s claims are relevant to this decision: Count I for breach of contract for

failure to comply with the information rights provision provided under Section 7

of the Management Agreement; Count IV for declaratory judgment that IGM is

breaching Section 7 of the Management Agreement; and Count VI for injunctive

relief asking that all books and record related to the Fund be turned over to the

Fund. 30 Plaintiff also filed a motion to expedite and for a temporary restraining

order on the same day it filed its Verified Complaint. 31

During a November 6, 2024, hearing on Plaintiff’s motions to expedite and

for a temporary restraining order, Defendants represented that they were “not

disagreeing that [Plaintiff is] entitled to additional documents” and “that there

may not even be a need for a trial” regarding the books and records disputes.32

Indeed, Defendants asserted that they had given Plaintiff “access to what we

believe is almost everything. The remaining items are subject, we believe, to

confidentiality agreements that were executed in [Invictus GP’s] own name.” 33

Two days later, on November 8, 2023, I held a follow-up hearing. 34 The next

30 Id.

31 Id.

32 Dkt. 47. at 14:20-23.

33 Id. at 8:1-4.

34 Dkt. 41.
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day, on November 9, 2023, I entered a status quo order relating to the disputed

funds, resolving the temporary restraining order motion. 35 On November 14,

2023, I granted the parties stipulated schedule for an expedited trial on Counts I,

IV, and VI. 36

Plaintiff filed a motion to compel on December 19, 2023, asserting that

Defendants were failing to comply with their discovery obligations. 37 On January

4, 2024, I heard argument on the motion to compel before granting Plaintiff’s

motion. 38 On January 6, 2024, Defendants filed a notice of removal in the United

States District Court for the District of Delaware. 39 On January 8, 2024, I held a

teleconference, and confirmed that the trial, scheduled for January 11, 2024, was

cancelled, given Defendants’ notice of removal. 40 Less than a week later, on

January 12, 2024, the federal court remanded the case back to this Court. 41 Trial

was rescheduled for February 6, 2024.

On February 5, 2024, the day before the trial, Defendants filed a letter on

35 Dkt. 32.

36 Dkt. 39. The original schedule also contemplated Count V, but the parties

amended the schedule to limit the trial to only Counts I, IV, and VI. Dkt. 88.
37 Dkt. 64.

38 Dkt. 111.

39 Dkt. 82.

40 Dkt. 113.

41 Dkt. 86.
C.A. No. 2023-1099-NAC
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the docket (the “February Letter”). 42 In the February Letter, Defendants agreed

to produce documents to Plaintiff, with two exceptions. First, Defendants carved

out eight specific categories of documents and records they believed fell outside of

Plaintiff’s information rights, including documents unrelated to the Fund or its

investments. 43 And second, Defendants asserted that they would have “no

objection to producing privileged communications with counsel,” subject to a

condition precedent that Plaintiff pay the legal fees associated with the requested

documents. 44 Defendants closed their letter by noting that their “decision to

produce the documents outlined above significantly narrows the disputes

concerning the remaining categories of documents. Accordingly, Defendants

believe that the trial should focus on any categories of documents in the eight

categories above.” 45

The Court held trial with three live witnesses and over 800 joint trial

exhibits on February 6, 2024, to address Counts I, IV, and VI of Plaintiff’s Verified

Complaint. 46 The parties completed post-trial briefing on March 25, 2024, and

the Court heard post-trial oral argument on March 28, 2024. 47 In the post-trial

42 JX 230 (February Letter).

43 Id. at 3.

44 Id. at 2.

45 Id. at 4.

46 Dkt. 114.

47 Dkt. 127.
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briefing and post-trial argument, Defendants largely did not contest the facts of

the case and instead asserted legal arguments for dismissal, arguments

Defendants waived with the February Letter.

II. LEGAL ANALYSIS

Plaintiff’s claims before me concern the books and records related to the

Fund. Plaintiff seeks specific performance of Section 7 of the Management

Agreement, in addition to both declaratory and injunctive relief arising from its

right to the books and records related to the Fund.

A. Scope of the Fund’s Information Rights

“When interpreting a contract, the role of a court is to effectuate the parties’

intent.” 48 “Unless there is ambiguity, Delaware courts interpret contract terms

according to their plain, ordinary meaning.” 49 “Contract language is not

ambiguous merely because the parties dispute what it means. To be ambiguous,

a disputed contract term must be fairly or reasonably susceptible to more than

one meaning.” 50 “If a writing is plain and clear on its face, i.e., its language

conveys an unmistakable meaning, the writing itself is the sole source for gaining

48 Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del.
2006).
49 Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012).

50 Id. (footnote omitted).
C.A. No. 2023-1099-NAC
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an understanding of intent.” 51

Plaintiff points to its information rights under Section 7 of the Management

Agreement. 52 Section 7 of the Management Agreement gives the Fund “direct and

unrestricted access to the books and records of the Management Company as such

books and records relate to the Funds, and any and all other information

pertaining to the business and affairs of the Funds and its Investments.” 53 This

information rights provision is broad—all books, records, and information that

relate to the Fund. Indeed, at trial, Mr. Woodmansee understandably described

it as “probably the broadest information, books and records provision I’ve seen.” 54

But Section 7 only gives the Fund access to IGM’s books and records that

relate to the Fund. In light of IGM having operated almost exclusively as the

Fund’s management company, however, that information right gives the Fund

51 City Inv. Co. Liquid. Tr. v. Cont’l Cas. Co., 624 A.2d 1191, 1198 (Del.

1993).
52 Plaintiff also briefly asserts that under Cayman law the Fund’s books and

records are owned by the general partner of the Fund. See JX 97 (Mourant
Letter). In other words, once the Corbin Entities and the Gatewood Entities
removed Invictus GP as the Fund’s general partner the rights to the documents
and records automatically passed to the replacement general partner—TREO GP.
But rather than engage on the Cayman entity arguments, the parties instead
focused their briefing and arguments on Section 7 of the Management Agreement.
I therefore do the same.
53 JX 21 (Management Agreement) § 7.

54 Tr. 23:12-13 (Woodmansee).
C.A. No. 2023-1099-NAC
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access to almost everything in IGM’s custody. 55

Although Defendants have suggested that U.S. Bank has everything

Plaintiff needs, U.S. Bank is not the custodian of all the Fund’s books and records,

despite acting as the Fund’s administrator. During post-trial argument, Plaintiff,

further demonstrating its point, listed several examples of key documents not

maintained at U.S. Bank. 56

Rather than dispute the definition of “related” and its application to IGM’s

books and records, Defendants articulated the following eight categories of

documents they perceive to be outside of the scope of Section 7 in the February

55 As mentioned, Plaintiff often categorized the information it seeks in this

action into three categories: (1) information related to the Fund’s investments, (2)
information related to the Fund’s potential liabilities, and (3) information related
to causes of action that the Fund may pursue. In addition to general information
deficiencies related to the first category, Plaintiff has identified several Fund
liabilities and potential claims where the Fund has little to no visibility due to
IGM’s failure to produce the relevant books and records. Post-Tr. 14:22-17:6.
56 Post-Tr. 12:21-13:17 (“All of the email correspondence related to the Fund;

copies of underlying invoices that were purportedly paid by IGM for which IGM
sought reimbursement from the Fund; IGM’s receipts or other proof of payment
with respect to reimbursed expenses, documentation of the $6.9 million that IGM
received on account of Fund investments from Tuesday Morning; documentation
regarding the allocation of the $25 million administrative expense claim in
Tuesday Morning and how that claim was to be addressed among the three loan
positions and between the Fund and Mr. Redleaf; agreements between IGM and
the Groombridge law firm regarding IGM’s agreement to convey a share of
UnumX from the Fund to Groombridge; the post-foreclosure direction and
contribution agreement to which the Fund is a party; the post-foreclosure expense
reimbursement agreement to which the Fund is a party; documents related to the
Fund’s claims against the Polsinelli firm; and documents relating to the claims
against Corbin that Ms. Chen Delano says the Fund has.”).
C.A. No. 2023-1099-NAC
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Letter:

1. All personal documents and communications involving Ms. Delano and Mr.
Patel.
2. All non-Fund related documents and/communications involving either Ms.
Chen Delano and Mr. Patel, such as documents related to investments
outside of the Fund.
3. All financial documents and communications of IGM and not the Fund
(financial statements, tax returns, business and marketing plans, bank
statements, etc.).
4. All administrative documents and communications concerning IGM, and
not the Fund (e.g., employment matters, leases, software licenses, etc.).
5. All privileged documents and communications with IGM’s counsel that
provided legal advice to IGM about its duties and responsibilities as a fund
manager that were not involved in or related to the business and affairs of
the Fund or its Investments (i.e., Kirkland and Orrick).
6. All documents and communications (including, but not limited to privileged
communications) concerning any IGM dispute or litigation not related to
the Fund or its Investments.
7. All documents and communications concerning separately managed
accounts (‘SMAs’) and sub-advisory relationships, which are separate
arrangements from the Fund and its Investments.
8. All documents and communications that were created or occurred after IGM
was removed as manager of the Fund, which, for the avoidance of doubt,
includes any privileged communications about any litigation between the
Fund and Defendant. 57

At post-trial argument, Plaintiff walked through each of the eight categories

and articulated what I find to be the proper application of Section 7 to Defendants’

eight asserted exceptions.

The first exception excludes “[a]ll personal documents and communications”

related to Delano and Patel’s personal lives outside of IGM. These emails are

properly excluded, as they do not relate to the Fund.

57 JX 230 (February Letter) at 3.
C.A. No. 2023-1099-NAC
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The second exemption excludes “non-Fund related documents

and/communications,” including “documents relating to investments outside the

Fund.” Such exclusion is appropriate to the extent that the documents and

communications are truly unrelated to the Fund. For the avoidance of doubt, this

exception does not include any research, communications, or any other documents

created on behalf of the Fund; those documents fall within the Fund’s information

rights under Section 7.

The third and fourth exemptions relate to financial and administrative

documents and communications. To the extent that these do not pertain in any

way to the Fund, Defendants do not need to produce these documents. 58 Yet

Defendants’ purported exemptions in the February Letter include items that are

almost certainly related to the Fund, such as IGM’s bank statements. Despite

Defendants’ attempt to portray IGM as a stand-alone company with little overlap

with the Fund, trial has shown that to be far from the truth. The vast majority of

IGM’s actions are related to the Fund, including IGM routinely receiving

payments on behalf of the Fund. 59

The fifth exemption relates to any legal advice IGM received while acting

as the Fund’s management company, including but not limited to advice received

58 For the avoidance of doubt, documents and communications that concern

actual or potential charges to the Fund must be produced.
59 See, e.g., Tr. 64:23-65:3 (Woodmansee).
C.A. No. 2023-1099-NAC
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from Kirkland & Ellis and Orrick, Herrington & Sutcliffe. Section 14.10 of the

Partnership Agreement provides that Invictus GP, “acting on behalf of the [Fund],

has initially selected Orrick, Herrington & Sutcliffe LLC (‘Partnership Counsel’)

as legal counsel to [Invictus GP] when acting on behalf of the [Fund].”60

Additionally, “Counsel to the Partnership may also be counsel to the General

Partner and its Affiliates.” 61

At trial, Delano asserted that under Section 14.10, the firms Kirkland &

Ellis and Orrick, Herrington & Sutcliffe were providing services to Invictus GP,

not the Fund. Even if I were to adopt Delano’s interpretation of the Partnership

Agreement, to the extent that IGM has the documents, such legal services are still

entirely within the scope of Section 7 of the Management Agreement since they

are all in the context of Invictus GP and IGM’s services to the Fund.

Defendants contend that Plaintiff must pay Defendants’ legal fees as a

condition precedent to receiving the documents related to the legal advice and

disputes. Defendants assert that, under the Partnership Agreement, the Fund is

responsible for paying “all Operational Expenses,” which include “all legal,

accounting, tax, consulting and professional services fees and expenses (including

tax preparation) relating to the Partnership and its activities . . . .” 62 Yet

60 JX 20 (Partnership Agreement) § 14.10.

61 Id.

62 Id. § 2.05 and Appendix A.
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Defendants do not identify any legal or contractual basis for their assertion that

Plaintiff’s broad information right is conditioned on the prior payment of such

expenses. “[C]ourts may not by construction add or excise terms, nor distort the

meaning of those used and thereby make a new contract for the parties under the

guise of interpreting the writing.” 63 When pressed at post-trial, Defendants could

not point to anything in the Management Agreement that conditioned Plaintiff’s

Section 7 information rights on the payment of legal fees. 64 If anything,

Defendants may have an independent claim under Section 2.05 of the Partnership

Agreement or Section 5 of the Management Agreement for reimbursement. But

in no way does that allow Defendants to shirk their obligations under Section 7 of

the Management Agreement. 65

The sixth exception relates to IGM’s disputes “not related to the Fund or its

Investments.” Again, so long as the dispute is unrelated to the Fund or IGM’s

services to the Fund, IGM does not need to produce the documents related those

disputes. During post-trial argument, Plaintiff highlighted that it has no interest

in receiving, for example, documents relating to the litigation with the Corbin

63 Union Fire Ins. Co. of Pittsburgh, P.A. v. Pan Am. Energy, LLC, 2003 WL

1432419 at *4 (Del. Ch. Mar. 19, 2003).
64 Post-Tr. 37:1-3 (“Well, Your Honor, we concede that there is no express

condition in Section 7 of the management agreement.”).
65To the extent that Invictus GP or IGM believes it has a right to
reimbursement under the Partnership Agreement or the Management
Agreement, it may assert its claim in a separate action.
C.A. No. 2023-1099-NAC
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Entities and the Gatewood Entities.

The seventh and eighth exceptions concern documents and communications

related to IGM’s advisement roles outside of the Fund and after IGM was removed

as the Fund’s management company. But IGM’s advisement roles outside of the

Fund are limited. In fact, outside of the limited sub-advisory services it offered to

Corbin Entities, such sub-advisement roles are essentially nonexistent. 66 But to

the extent IGM provided services to identifiable clients outside of the Fund, IGM

may exclude such documents. And finally, Plaintiff does not contest IGM’s

position that it does not need to produce documents and communications that

IGM created after its removal.

This is not rocket science. If the information relates to the Fund, and almost

everything IGM did during its time as the Fund’s management company related

to the Fund, then IGM is obligated under Section 7 of the Management Agreement

to produce the records to the Fund. Defendants have taken aggressive stances in

this litigation as to what “relates” to the Fund. If it is not already clear, I find

Section 7 to be extremely broad, and I order production accordingly.

B. Late Arguments

Rather than engage with the scope of Plaintiff’s information right or raise

arguments as to the eight categories that Defendants identified in the February

66 Tr. 216:14-21 (Patel).
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Letter, Defendants used their post-trial brief to assert that Counts I, IV, and VI

fail. But Defendants cannot now assert arguments they waived with the February

Letter.

In the February Letter, filed the day before trial, Defendants represented

that they “believe that the trial should focus on any categories of documents in

the eight categories above.” 67 Then, in a complete reversal of position, Defendants

assert after trial that specific performance, declaratory judgment, and injunctive

relief in general are not warranted and that this Court must dismiss all three of

Plaintiff’s claims in their entirety. 68 This is in stark contrast to Defendants’

representation that “Defendants’ decision to produce the documents outlined [in

the February Letter] significantly narrows the disputes concerning the remaining

categories of documents.” 69

Parties are encouraged to work together to narrow issues and allow for

courts to efficiently adjudicate only the matters that remain in dispute. But a

party may not narrow issues for trial, participate in a trial tailored to those

67 JX 230 (February Letter) at 4.

68 In addition to their volte-face, Defendants confusingly argue for dismissal

of Plaintiff’s declaratory judgment claim in their post-trial briefing, but propose
that I grant judgment in Plaintiff’s favor on the claim in their proposed order.
Compare Dkt. 119 at 32, 34, with Dkt. 119 at Exhibit A [hereinafter “Defendants’
Proposed Order”] ¶ 2 (“Judgment is entered in favor of the Fund only with respect
to Count IV (declaratory judgment) of the Complaint.”).
69 JX 230 (February Letter) at 4.
C.A. No. 2023-1099-NAC
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narrowed issues, and then, in its post-trial brief, revert back to arguments that it

waived in its pre-trial concession.

Under Section 7, Defendants agreed to “promptly provide” information to

Plaintiff. Defendants’ attempt to assert their previously waived defenses

reinforces my concern that Defendants are taking positions to delay compliance

with their bargained-for contractual obligations.

In the early stages of litigation, Defendants represented to me that they

would promptly produce the bulk of the disputed documents. 70 But Defendants

failed to follow through. Then, just days before the originally scheduled trial,

Defendants removed this action to federal court, which the federal court in turn

quickly sent back. And then, on the eve of the rescheduled trial, Defendants filed

the February Letter, asserting that it “significantly narrows the disputes

concerning the remaining categories of documents.” Yet, following the February

Letter, Defendants have basically done nothing to prepare the uncontested

documents for production. 71 And now, in post-trial briefing and argument,

Defendants attempt to assert dismissal arguments they had already waived.

70 Dkt. 41 at 31:1-7 (“But I think it’s also important to consider that
defendants have represented to me on multiple occasions, both during this
hearing and during our prior hearing, that defendants are taking very active steps
and will take very active steps to provide and facilitate access to nearly all of the
information that the plaintiffs are requesting.”).
71 Id. at 41:12-43:21.
C.A. No. 2023-1099-NAC
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Defendants’ post-trial arguments are improper and consequently are

waived.

C. Production Procedure

In its proposed order, Plaintiff requests that Defendants turn over all books

and records within five business days. 72 Defendants, on the other hand, request

twenty-one business days to produce electronic documents and non-electronic

records and ninety days to produce emails. 73 I agree with Plaintiff—five business

days is an appropriate window for IGM to produce all books, records, and

information related to the Fund.

Defendants’ continued delay in producing the books and records is

concerning. Despite Defendants conceding Plaintiff’s right to additional books

and records in the February Letter, Defendants had not, as of post-trial argument,

produced a single document to Plaintiff since the February Letter. 74 And at post-

trial argument it became apparent that Defendants had done exceedingly little in

the over seven weeks since Defendants filed the February Letter to prepare to

72 See Dkt. 118 Exhibit A ¶ 2.

73 Defendants’ Proposed Order ¶ 3. I also note that Defendants’ proposed
order uses “emails” instead of the term “communications” used in the February
Letter. To the extent Defendants were attempting to avoid producing other
electronic communications related to the Fund, such as Microsoft Teams chats
and Bloomberg messages used at IGM to communicate information related to the
Fund, I expressly order production of these communications.
74 Post-Tr. 8:1-5.
C.A. No. 2023-1099-NAC
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produce even the multitude of documents to which Defendants agreed Plaintiff

was entitled. 75 Consistent with my guidance at the conclusion of post-trial

argument, 76 I trust that Defendants have already done most of the heavy lifting

and indeed produced many of the subject books and records. But if Defendants

have instead continued to deny Plaintiff its information rights, much of the

burden is self-inflicted. 77

Moreover, the broad nature of Section 7 of the Management Agreement

alleviates much of the perceived burden Defendants assert they will incur if

expected to comply with their contractual obligation, an obligation they have

neglected for about six months.

Defendants argued they will need time to undertake a time-intensive

document-by-document review process, similar to what occurs in document

production in complex litigation. But the trial record demonstrates that nearly

all of IGM’s work was for the Fund and almost all of its documents are covered by

the Section 7 information access right. Rather than sifting through each of IGM’s

records one by one to decide what information Defendants should turn over to

Plaintiff, Defendants should start with the assumption that all of IGM’s records

75 Id. at 41:12-43:21.

76 Id. at 55:13-19.

77 Id. at 55:6-9 (“[D]efendants should not be surprised if my ruling sets a

very short window along the lines of what plaintiffs have asked for in terms of
production . . . .”).
C.A. No. 2023-1099-NAC
April 17, 2024
Page 22

created or maintained from its appointment as the Fund’s management company

on August 25, 2020, until its removal on September 29, 2023, relate to the Fund.

Defendants should then target documents that fall into one of the permitted

exceptions. This process is especially appropriate, given that the parties expressly

bargained for Defendants to “promptly provide” the information to Plaintiff.

Plaintiff has requested that Defendants provide a log for withheld or

redacted documents. The parties bargained for a very broad contractual

information right. And Defendants have not argued why Plaintiff’s log request

would be inappropriate given the circumstances of this case, where Defendants

have repeatedly interfered with the bargained-for information right. Plaintiff’s

logging request in this instance is therefore appropriate and will be granted.

III. CONCLUSION

Having carefully considered all the evidence presented at trial, and for the

reasons set forth above, I am entering judgment for the Fund on Counts I, IV, and

VI by granting Plaintiff’s proposed form of order with modifications.

/s/ Nathan A. Cook
Vice Chancellor Nathan A. Cook